IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

CONT.CAS(C) 165/2008

Judgment delivered on: 15th December, 2011

MONTREAUX RESORTS P.TLD. & ORS. ..... Petitioners

Through: Mr. Anand Mohan Mishra, Adv. for petitioners No. 1 to 3

Versus

SONIA KHOSLA & ORS. ..... Respondents

Through: Mr. Deepak Khosla in person

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT

O R D E R

15.12.2011

Cont.Case (C) No.165/2008

1. In the instant case, notice was issued vide order dated 17.03.2008 and

could not be adjudicated due the following reasons.

2. Thereafter CM. NO. 11170/2008 was moved by the applicants /

respondent no.1 & 2, i.e., Sonia Khosla and her husband Deepak Khosla,

and sought recall of order dated 17.03.2008. As alleged in the said

application, the Petitioner has managed to obtain notice by misrepresenting

the true and correct facts and on 08.08.2008 this court passed an order which

is as under:-

“In my opinion the correct remedy of the applicants is to file a

respondent(sic) and get the notice discharged”

“Reserving rights of the respondents to urge all pleas in response to the

notice issued in the contempt petition the instant application is dismissed.”

3. Thereafter, CM NO. 14125/2008, CM NO. 14126/2008, CM NO.

16972/08 and CM NO. 16973/2008 were moved by the applicants /

respondents. Thereon, it is recorded in the order dated 04.12.2008 that:-

“Respondent submits that no notice of the applications is required to be

served in view of the judgment of the Hon’ble Supreme Court in Pritish Vs.

State of Maharashtra (2002 SC 236).”

4. Thereafter CM NO. 2074/2009 and CM NO. 2075/2009 were moved

by the applicants / respondents and vide order dated 12.02.2009, the said

applications were directed to be listed when the main matter is listed.

5. Another application vide No.12499/2009 was moved by the applicants

/ respondents. The same was taken up on 03.09.2009. Notice was issued.

The non-applicant was directed to file reply within 4 weeks. Rejoinder

thereto was to be filed before the next date.

6. Thereafter another CM NO. 3874/10 was moved to transfer this

matter to the Bench of Mr. P.K. Bhasin, J. where 27 matters of the applicant

of similar nature were pending. The said application was allowed vide order

dated 02.03.2010 and it was directed that this matter be placed before Mr.

P.K. Bhasin. J. subject to the Order of Hon’ble Acting Chief Justice for

16.04.2010.

7. One more Crl. M.A. 10567/2010 was moved. Vide order dated

01.06.2010, notice was issued. Somehow, this matter came before me on

01.09.2011 and at the request of the applicants / respondents re-notified for

14.09.2011. I started hearing the matter. Ld. Counsel for the Petitioner

advanced his arguments and matter was re-notified on 23.09.2011 for

remaining arguments.

8. On 12.10.2011, when Ld. Counsel for the Petitioner were on the legs

to argue the case, Mr. Deepak Khosla, respondent no. 2 who is appearing in

person in all the cases has pointed out regarding the pendency of Crl. M.A.

2075/2009.

9. The issue raised in the said application is that the Advocates

appearing for the Petitioner has not filed Vakalatnama. Therefore, they

cannot be allowed to appear in the matter. Mr. Anand Mohan Mishra, Ld.

Counsel for the Petitioner submits that he filed the Vakalatnama way back in

the year 2009. On his submission, he was allowed to inspect the file in the

court itself.

10. Thereafter, the matter was taken up on 13.10.2011. On that day,

Mr. Vikas Kakkar, Ld. Counsel for the Petitioner appeared and submits that

he is still appearing on behalf of Petitioner no. 2 & 3. This court again

started hearing the matter on 13.10.2011. While, arguments were going on,

Mr.Deepak Khosla, Respondent no. 2 interjected and submitted that he has

filed only short reply, therefore, he is entitled to file detailed reply. This

court has specifically asked Mr. Khosla whether he wishes to file a detailed

reply to which he stated that until and unless the CM No.2075/2009 under

Section 151 CPC read with Order XIX CPC, read with Chapter XVII

Sections (1 & 2) of Delhi High Court Rules, read with Section 17 (5) of the

Contempt of Courts Act, for summoning inter alia, petitioner Nos.2 & 3 for

examination / cross-examination, is decided only thereafter, he would take

minimum eight weeks time to file reply because he is planning to go abroad

on 20.10.2011 to China for the medical treatment of his wife, respondent

No.1 Mrs.Sonia Khosla.

Mr.Khosla, has further submitted that on his application - CM

No.2075/2009, even notice has not been issued since the date of its filing i.e.

31.01.2009, despite the details of the falsehood referred to in CM

No.2075/2009 being stated in very great detail in Crl.Misc. Application

No.16973/2008 which was filed in the November 2008. So, if CM

No.2075/2009 has no merits even issuance of notice, this Court may dismiss

his Crl.Misc. Application No.16973/2008, so that he may proceed in the

main matter.

He further submits and requested this Court to split up the Crl.Misc.

Application No.16973/2008 from the main matter, as per the precedents set

by the Division Bench of this Court, while hearing Contempt Case

No.4/2009 in which also the very same petitioners are the contemnors in

Criminal Contempt and in their reply to save themselves from the Criminal

Contempt whose punishment is six months and fine against Civil Contempt

in which punishment is 07 years and fine. Division Bench – III while

appreciating the facts, has agreed that the perjury proceedings under Section

340 Cr.P.C. be separated from the main petition. Similarly, this Crl.Misc.

Application No.16973/2008 can be carved out from civil contempt

proceedings and hear the main petition as far as application is concerned.

This can also be done in the light of the judgment of the Supreme Court

passed in the case of United Insurance Company Limited Vs. Rajender

Singh & Ors, (2000) 3 SCC 581, this Court will be compelled to recall its

order issuing notice, because notice was issued ex-parte in the year 2008 and

petitioners played a fraud. The fraud has now started to be unveiled in

different Court including the Trial Court at Tis Hazari Courts, Company

Court and before the Division Bench of this Court, hearing the criminal

contempt proceedings.

Here, I make it clear that whatever was stated by Mr.Khosla (contemnor

No.2) has been recorded verbatim above.

Admittedly, I note that vide order dated 17.03.2008, notice was issued in

the instant petition and thereafter, matter could not be proceeded on one

pretext or the other.

Further, I note that vide the noting of Joint Registrar (Listing) dated

28.03.2011, this matter was listed before S. N. Dhingra, J. and in the same

noting it is noted that this matter not to be listed before P.K. Bhasin, J; G.S.

Sistani, J; & Ajit Bharihoke, J.

Re-notify for directions on 17.10.2011.

11. Thereafter, C.M. No. 19121/2011 Under Section 151 CPC read with

Order 1 Rule 9 & 10 and C.M. NO. 19123/2011 Under Section 151 CPC

read with Court of Contempt Act and C.M. No 19124/2011 Under Section

151 CPC read with Chapter V of Rule 1 of Delhi High Court Rules was

moved.

12. In Crl.M.A. No. 16973/2008 moved by the Respondents for

prosecution of perjury and related offences against injustice committed by

the prospective accused (Who are the Petitioners in CCP No. 165 of 2008

filed before the Hon’ble Delhi High Court in March, 2008). Contempt

Petition No. (CC) 165 of 2008 arising from Company Petition No. (CP) 114

of 2007 pending adjudication before the Hon’ble Company Law Board

(Principal Bench, New Delhi )Titled “Sonia Khosla. Vs. Montreaux Resorts

(P) Ltd. and Ors. and it is prayed to initiate:

i. Criminal proceedings under 191/192//196/197/198/199/200/

201/202/203/207/209/211 of the Indian Penal Code, read with Sections 120-

B and 34 of the Indian Penal Code, 1860, read with Sections 176, 181 and

182 of the Indian Penal Code, 1860, read with Sections 465, 366, 467, 468,

469, 409, 471, 474, 477 and 477-A of the Indian Penal Code, 1860 and other

provisions of the law, by initiating an inquiry within the provisions of

Section 340(1) of the Cr.P.C. read with Section 195(1)(b) of the Cr.P.C.

(Only if such enquiry be deemed necessary by this Hon’ble Court), and more

particularly, may be pleased to initiate as under:-

“a) In the event that this Hon’ble Court deems it necessary to make such

inquiry, to first record a finding to the effect that it is necessary and

expedient in the interests of justice that an enquiry should be made into an

offence(s) referred to in clause (b) of sub-section (1) of Section 195 of the

Cr.P.C. which appears to have been committed by the following Prospective

Accused and such other person (s) deemed necessary by this Hon’ble Court

who abetted these perjurious act(s) / action (s) in, or in relation, proceedings

before this Hon’ble Court in CCP no. 165 of 2008 preferred by the

Prospective Accused through Prospective Accused Nos.1 and 2, in respect of

false statements made therein, for forged documents filed therein, and for

suppression of vital and material facts from the same:

i. Mr. Vikram Bakshi – Prospective Accused / Proforma Party No. 1

(Non-Applicant).

ii. Mr. Wadia Parkash – Prospective Accused / Proforma Party No. 2

(Non-Applicant).

iii. Mr. Vinod Surha – Prospective Accused / Proforma Party No. 3 (Non-

Applicant).

iv. Any other person (s) deemed culpable by this Hon’ble Court as guilty

of conspiring and / or aiding and / or abetting and / or actively participating

in these acts.

b) to appoint an Officer of this Hon’ble Court and to direct him to make

a complaint thereof in writing into the offences under Sections

191/192/196/197/198/199

/200/201/202/203/207/209/209/211 of the Indian Penal Code, read with

Sections 120-B and 34 of the Indian Penal Code, 1860, read with Sections

176,181 and 182 of the Indian Penal Code, 1860, read with Sections 465,

466,467,468,469,409,471,474,477 and 477-A of the Indian Penal Code,

1860 and to sign the said complaint; and

c) to send, or direct such Officer to send, this complaint to the concerned

Metropolitan Magistrate having jurisdiction; and

d) take sufficient security for the appearance of the prospective Accused

before such Magiastrate, or if the alleged offence (s) is / are non-bailable and

this Hon’ble Court thinks it necessary to do so, send the Prospective

Accused in custody to such Magistrate; and

e) bind over any person (s) to appear and give evidence before such

Magistrate; and

f) to take such other actions as this Hon’ble Court may deem fit and

proper in view of the abovementioned facts and circumstances of the present

matter so as to be in the interest of justice as well as in the interests of the

applicant.”

13. In my opinion, the instant application Under Section 340 CPC is not

maintainable for the reason this very issue is the subject matter of contempt

petitions filed by Deepak Khosla and his wife Sonia Khosla and the attempt

is to stall the contempt proceedings initiated against them by the opposite

group.

14. Another CM. no. 2075/2009 was filed by respondents seeking

presence, examination and cross-examination of the Petitioners and their

Counsels.

15. In my opinion, since the detailed reply has not been filed by the

respondents, therefore this is not a stage to consider the examination and

cross-examination as sought for. The application stands dismissed as pre-

mature.

C.M. No. 19121/2011

16. The instant application Under Section 151 of CPC read with Section 1

Rule 9 & 10 CPC was filed by the respondent seeking dismissal of the

petition for misjoinder of parties, and / or for being in the name of the

“Wrong plaintiff” and it is prayed to:-

i) Dismiss the petition for misjoinder of parties and / or for being in the

name of the wrong plaintiff viz., the Company Montreaux Resorts (P) Ltd.

ii) Issue an ex-parte ad interim order and / or direction in terms of the

prayers above.

iii) Pass such other order (s) or direction (s) as may be deemed just and

proper in the facts and circumstances of the case.

17. In my opinion, the issue raised by the applicants can be raised in his

detailed reply. Accordingly, the application stands dismissed.

C.M. No. 19122/2011

Exemption is allowed subject to just exceptions.

C.M. No. 19123/2011

18. The instant application under Section 151 of the CPC, read with the

Contempt of Courts Act was moved by the respondent seeking direction for

strict compliance with order dated 25.08.2008 of this Hon’ble Court; in the

alternative, to initiate proceedings for civil and criminal contempt against the

violators and it is prayed that:-

i) Direct Mr. P. Nagesh and Mr. Anand Mohan Mishra (Advocates) and

the Petitioners, to strictly comply with the Order of 25.08.2009 of this

Hon’ble court, as orally undertaken to them to do so on 25.08.2009 in order

to thwart penal proceedings against them on that day.

ii) Direct them to comply with that order even if the petition is being

dismissed, in order to legally justify their appearances for the three

petitioners since 25.08.2009.

iii) In the alternative to (1) (2):

Initiate civil contempt proceedings against Mr. P. Nagesh, Mr. Anand

Mohan Mishra and their clients for deliberate and conscious violation of the

order dated 25.08.2009, and initiate criminal contempt proceedings against

Mr. P. Nagesh, Mr. Anand Mohan Mishra and their clients for unauthorized

appearance on 25.08.2009 and thereafter, including on 13-10-2011.

iv) Issue an ex-parte ad interim order and / or direction in terms of the

prayers above.

v) Pass such other order(s) or direction (s) as may be deemed just and

proper in the facts and circumstances of the case.

19. In my opinion, this court cannot issue direction as prayed for.

Therefore, this application is not maintainable in these proceedings.

20. The application stands dismissed.

CM. No. 19124/2011

21. The instant application was filed Under Section 151 CPC read with

Chapter 5 Rule 1 of the Delhi High Court Rules, read with Section 34 of the

Advocates Act, read with the Bar Council Rules (Rules39) moved by the

applicant / respondent wherein it was prayed that:-

i) This Hon’ble Court may be pleased to exercise its powers, inter alia,

under Section 34 of the Advocates Act, read with Rule 39 of the Bar Council

Rules, read with the Delhi High Court Rules and bar from appearance before

this Hon’ble Court, or from acting in the present matter, or from pleading in

the present matter, any advocate purporting to appear for the Petitioner no. 2

and Petitioner no. 3 other than Mr. Rajinder Pal Singh, Advocate.

ii) Issue an ex parte ad interim order and / or direction in terms of the

prayers above.

iii) Pass such other order (s) or direction (s) as may be deemed just and

proper in the facts and circumstances of the case.

22. Under Section 34 of the Advocates Act, no rules have been framed by

this Court Under Rule 39 of Bar Councils Rules as sought by the applicants /

respondents, whether the counsel can bar or not except Rajinder Pal Singh.

In my opinion, the said Counsel may be on record. But since Mr. Vikas

Kakkar has filed the Instant Petition and he is appearing in the matter,

therefore, it is right of the Petitioner to engage any Counsel whomsoever he

wants.

23. The application stands dismissed.

24. The applicants / respondents had moved 4 more applications.

Crl.M.A. No. 19340/2011

Exemption is allowed subject to just exceptions.

Crl. M.A. No. 19337/2011

25. The instant application was moved by the applicant / respondent no.1

seeking permission to Lay “Shock” at the “Scandalous” proposal of the

petitioners on the record of this Hon’ble Court, and other matters, including

making of reference Under Chapter II Section 2 of the Delhi High Court

Rules to a Bench of two or more judges to decide upon the question of

“practice” and “procedure” to be adopted for hearing the present contempt

petition and it is prayed:

1. To take on record the fact that it was the petitioners who proposed that

their own contempt petition be adjourned sine die.

2. Adjudicate the contempt petition expeditiously to its close in

accordance with law.

In the alternative :

Refer the matter of the “practice” and “procedure” to be adopted for

adjudicating the present petition to a Bench of two or more judges.

3. Adjudicate the three applications filed on 15-10-2011 and listed on

17-10-2011 before proceedings further in the matter (Viz. CM Nos.19121-23

of 2011)

4. Modify its order dated 17-10-2011 (or set out in its order on this

application) to show that Mr. Vibhu Bakhru stated to this Hon’ble Court on

17-10-2011 that the Arbitration Tribunal had confirmed the order dated 31-

01-2008 passed by the Hon’ble Company Law Board.

5. Take on record the e-mail dated 13-10-2011 sent by the applicant no.

2 to Mr. Amarjit Singh Chandhiok, and the objections of the applicants to

the continued participation of Mr. Amarjit Singh Chandhiok as amicus

curiae in the present proceedings.

6. Take on record the intent of the applicant no. 2 to record the

proceedings relating to them so that there is “evidene” for the Review Court

or the Appellate Court or other bodies of what transpires in this Hon’ble

Court, with the recording to be kept in the custody of this Hon’ble Court

(undertaking as per Annexure 1).

7. Pass ex-parte order on the above prayers.

8. Pass such other order or further orders as this Hon’ble Court may

deem fit and proper in the facts and circumstances of the present case.

26. In my opinion, this application is not maintainable in these

proceedings and dismissed accordingly.

C.M. No. 19338/2011

27. The instant application filed Under Section 151 of the CPC read with

Chapter II of the Delhi High Court Rules by the applicants / respondents

seeking that the present matter to be heard by the Company Court. In the

alternative: For reference Under Chapter II Section 2 of the Delhi High

Court Rules to a Bench of two or more Judges to decide upon the question of

“practice” and “procedure” to be adopted for hearing the present contempt

Petition and it is prayed in the instant application that:

i. This Hon’ble Court may be pleased to refer the present contempt

petition to Hon’ble Chief Justice for considering whether or not it should be

heard by the Court of Hon’ble Justice Mr. J.R. Midha which is hearing 30 of

other related matters between the same parties:

In the alternative:-

In exercise of its powers circumscribed in Chapter II, Section 2 of the Delhi

High Court Rules, refer the present petition to two Judges of this Hon’ble

Court to decide wither or not it should be heard by the Court of Hon’ble

Justice Mr. J.R. Midha which is hearing 30 other related matters between the

same parties.

ii. Issue an ex parte ad interim order and / or direction in terms of the

prayers above.

iii. Pass such other order (s) or direction (s) as may be deemed just and

proper in the facts and circumstances of the case.

28. The matter listed before this Court are total 7 in numbers, and 6 are

Contempt Petition filed against each other. The matters listed before

Hon’ble Mr. Justice J.R. Midha are 30 in number. The issue in each and

every matter is independent. Therefore, each and every matter has its own

consequences. Therefore, the present application is also dismissed.

Crl. M.A. 19339/2011

29. The instant application was filed Under Section 151 CPC by

respondent no. 1 seeking dismissal of the Arbitration Petition, by deciding

the same in accordance with the legal principles enshrined in the four

maxims concurrently applicable to the present matter viz. “Ex Turpi Causa

Non Oritur Actio”, “Ex Dolo Malo Non Oritur Actio”, Pari Delicto Portior

Est Condition Possidentis / Defendantis, and “Actus Curaie Neminem

Gravabit” and it is prayed to:-

1. Take the criminal complaint dated 05-09-2011 and the cognizance order

dated 01-10-2011 on record.

2. Dismiss the arbitration petition in light of the inviolable judicial principle

enshrined in the maxim Ex Turpi Causa Non Oritur Actio.

And:

Dismiss the arbitration petition in the light of the inviolable judicial principle

enshrined in the maxim ex dolo malo non oritur action.

And:

Deny any and all assistance of this Hon’ble Court to the Petitioner in light of

the inviolable judicial principle enshrined in the maxim pari delicto portior

est condition possidentis / defendantis

3. Pass ex parte order on the above prayers.

4. Pass such other order or further orders as this Hon’ble Court may deem fit

and proper in the facts and circumstances of the present case.

30. I note that vide order dated 03.12.2009, Ld. ACMM (SPLACTS) /

Central, Delhi passed the following order:-

“Complainant No. 3 Deepak Khosla is present in person.

This complaint is filed by M/s Montreaux Resorts Pvt. Ltd. Complainant No.

1 and also complainant no. 2 Sonia Khosla and No. 3 Deepak Khosla against

four accused. On this complaint my Ld. Predecessor Court was pleased to

take cognizance on 07.02.2009 and thereafter complainant and witnesses

were examined U/s 200 Cr.P.C.

It is deposed on oath that the complainant No. 2 Ms. Sonia Khosla was the

founder / director of complainant No. 1 Company and duly authorized to

represent the complainant company. It is deposed that the accused No. 1

Vikram Bakshi entered into one Memorandum of Understanding (MOU)

with the complainant. Subsequently, one forged Form No. 32 Ex.CW1/5

was filed with the ROC on which signatures of complainant No. 2 were

forged by accused no. 1 and others. Besides the said forgery, it is alleged

that minutes book of the company was also forged by the accused persons in

which AGM dated 30.09.2006 is deposed to have been held and it is forged

as it contains forged signatures of Complainant No. 2, as on that day she was

out of country. The said minutes book is proved as Ex.CW1/9 and

Ex.CW1/8. In the same minutes book, it is falsely shown that complainant

NO. 2 was present. The passport of Complainant No. 2 is proved on record

as Ex.CW1/11. There was no local minimum quorum to hold that meeting.

It is also claimed that accused Nos. 2 & 3 were merely appointed as

additional directors and it ceased to be so on 30.09.2006 as they were not

appointed as regular directors.

It is also claimed that forgery of the minutes of meeting is also clear from

the fact that M/s Sameer Qudesia and associates were shown re-appointed as

statutory auditors of the company whereas, it is deposed that the offered

their services to the company almost 1½ years later i.e. 05.09.2007. No

board meetings took place is also clear from the fact of completely blank

attendance register. It is also deposed that AGM dated 14.06.2006 is also

forged as Complainant NO. 2 was shown present therein but she was out of

country at that time also as is clear from her passport.

Against accused No. 4, it is deposed that he gave a certificate which was

false knowing well that accused Nos. 2 & 3 were not directors and he

countersigned DIN-3 from verifying that he checked the particulars in the

form from the records of the company and found them to be true and correct

and it was a false certificate since it was contrary to records. It is also

alleged that DIN-3 and DIN-2 forms containing false particulars were

prepared and submitted by the accused. It is also deposed that the accused

persons have failed to return the company documents and assets. Even the

date of appointment of accused Nos. 2 & 3 is falsely shown as 23.12.2005

instead of 21.12.2005 as additional directors. It is deposed that accused No.

4 has been paid exorbitant amount by the remaining accused in this

conspiracy.

The complaint and the deposition of the complainant witnesses shows

sufficient grounds to proceed against all the three accused for the criminal

offences. Accordingly, all the four accused namely Vikram Bakshi, Wadia

Prakash, Vinod Surha and Vikas Gera are summoned for the offences U/s.

628/283-2A/630 of the Companies Act, 1956 and U/s.

177/182/197/198/199/200/468

/471 of IPC.

Issue summons to all the four accused on steps to be taken by the

complainant i.e. PF / RC-AD / Speed Post.”

31. The petitioner being aggrieved has assailed the aforesaid order in Crl.

M.C. No. 744/2010, which is pending before this Court for adjudication.

32. Vide order dated 28.01.2009, Hon’ble Ms. Justice Geeta Mittal,

passed an order against the respondents which is as under:-

“CA No. 1000, 1290 & 1446/2008 in Co.A.(SB) No. 6/2008 and CA No.

1001/2008 in Co.A. (SB) No. 7/2008 filed by the appellants are under

hearing by this Court. Appellant has already been heard on these

applications and learned counsel for the respondents was being heard when

the matter was adjourned to today to make the submission in reply.

In support of their submissions, leaned counsel for the respondents placed

reliance on the appeal filed by Ms. Sonia Khosla before the Company Law

Board and had opened submissions that the appellant cannot be permitted to

set up case not pleaded in the petition before the Company Law Board. It

was also their contention that the appellant cannot modify or vary the

petition filed on 13th August, 2007 by way of filing an additional affidavit

about six months thereafter on 30th January, 2008. Reliance was placed on

the memorandum of understanding between some of the parties which was

the basis of the petition before the Company Law Board.

The applications before this Court are in the nature of a review of hearings

wherefrom a brother colleague has recused himself for reasons of scandalous

averments contained in CA no. 1000/2008. It is well settled that

consideration of any application has to abide by judicial record which is

placed before the court. Fully conscious of the well settled legal position,

unfounded allegations, before even submissions could be completed by

counsel, have been made. The matter was adjourned at request of counsel for

the respondents to today. During the intervening period, CA No. 133/2008

in Co.A (SB) 7/2008 and CCP No. 1/2009 in Co.A (SB) No.6/2008 have

been filed on behalf of the applicant. When the matter was called out for

hearing today, the applicant insisted on arguing CCP NO. 1/2009 in Co.A.

(SB) NO. 6/2008 and CA No. 27/2009 & 31/2009 in Co.A (SB) No. 7/2008

objecting to the appearance of learned counsel on the other side on the

ground that they have no right to appear. Counsels for the respondents were

heard and have drawn my attention to the memo of parties filed by Ms.

Sonia Khosla before the Company Law Board wherein this company was

arrayed as the respondent no. 1 and was represented by counsel appearing

for the respondent nos. 2, 3 and 4 before this court. Counsels relied on Paras

3 to 9 of order dated 31st January, 2008 passed by the Company Law Board

at Page 60 of Co.A (SB) No. 6/2008. In this background, in as much as

counsels had appeared for the respondents before the Company Law Board

and the present petition in appeal being continuation thereof, I saw no reason

as to why they cannot continue to complete the arguments in the part-heard

matter. It was pointed out that no such objection was ever raised even

though the same counsel have been appearing in the matter right from the

first date when the respondents first put in appearance. Caveat is also stated

to have been filed.

In this background, Mr. Vibhu Bhakru, Advocate who has been addressing

arguments was asked to resume arguments on the part-heard application. At

this stage, Mr. Deepak Khosla rose and started gesticulating. He interrupted

the court proceedings in a loud voice making allegations that the counsels

appearing in the matter have no right of audience in the matter and that

proceedings in this court are not as per law. All requests to him to contain

himself, to resume his seat and permit respondents’ counsel to complete his

submission did not bear any fruit. Mr. Khosla continued to interrupt the

court proceedings in loud and obstructive tone and making allegations

against the counsel appearing on the other side in open court that they are

lying. He used insulting language and has cast aspersions on counsel

appearing on the other side. The allegations made are scandalous and aimed

at creating prejudice and embarrassment to counsel who are discharging

their professional duties towards their client. I have been exercising

considerable restraint keeping in view that Mr. Deepak Khosla was

appearing in person. The respondents have objected to his appearance

inasmuch as he is arrayed as respondent no. 11 before the Company law

Board in the petition which has been filed by his wife Ms. Sonia Khosla as

the petitioner and Mr. Khosla is the opposite party before the Company Law

Board. His conduct in court today was so obstructive that this court found it

impossible to record the order in open court and has risen to dictate this

order in chambers. The acts of Mr. Deepak Khosla in standing up when the

other side is arguing, gesticulating with his hands, raising his voice and not

permitting the proceedings in the court to continue amounts to interference

with the due course of judicial proceedings before this court, which prima

facie, constitutes criminal contempt of court. Paras 1 to 9 of this order be

treated as the facts constituting the gravemen of the charge as per para 10

above. Let a copy of order be given to Mr. Deepak Khosla under signatures

of the Court Master. Mr. Deepak Khosla is hereby called upon to submit his

response to this order, which is being treated as a notice of charge, to be

responded within two weeks. The contempt matter may be place before

Hon’ble the Chief Justice for placing before the appropriate Division Bench

for further proceedings. Registry shall appropriately register the matter and

place copies of all the orders and applications noticed above before the

Division Bench.

Dasti.”

33. Being aggrieved, the Respondents Deepak Khosla and Sonia Khosla

have challenged the same, which is pending for adjudication before D.B. of

this Court.

34. It is pertinent to mention, vide order dated 11.12.2009, Mr. P.K.

Bhasin, J passed the following order in C.C.P. (C.O) 1/2009:-

“Petitioner No.2 Mrs. Sonia Khosla, who is being represented by

her husband, claims that she is the founder Director of petitioner no.1

Company which was incorporated for building a Rs.110 crore luxury resort

on a piece of land in Kasauli which was owned by her father-in-law Shri

R.P.Khosla. Mrs. Sonia Khosla entered into a MoU in respect of the said

project in Kasauli with one Mr. Vikram Bakshi, who has been arrayed as

contemner no.1. That MoU was signed by Shri R.P.Khosla, owner of the

land, as a confirming party. Pursuant tothat MoU Mr. Wadia Parkash and

Mr. Vinod Surha, who have been arrayed as contemners no. 2 and 3

respectively, were made Additional Directors of petitioner no.1 Company

on 21st December,2005 being the nominees of Mr. Vikram Bakshi. Some

disputes arose between Mrs. Sonia Khosla and Mr. Vikram Bakshi

in respect of the implementation of the MoU and so Mr.Wadia and

Mr.Surha could not be made regular Directors and they allegedly ceased to

be the Directors of the Company by operation of law on 30th September,

2006. However, Mr. Khosla has contended, they continued to act as the

Directors even thereafter illegally and not only that they illegally inducted

Mr. Vikram Bakshi, also into the Board of Directors as an Additional

Director on 19/03/07 and in some meetings conducted by these persons even

her presence was shown when actually she was not even in India. Mr.

Khosla has submitted that in respect of one such incident of forgery of

minutes of a meeting purporting to be that of the Board of Directors

showing the presence of his wife in that meeting when actually she was on

that day in UK a criminal complaint was filed and on 3rd of this month

itself the Court of Sh.Digvinay Singh, ACMM, has summoned

accused Vikram Bakshi, Wadia Parkash, Vinod Surha and one Vinod Gera,

Company Secretary, for different offences including the ones punishable

under Sections 468/471 IPC. Mr. Khosla has shown this Court a copy of

that order passed in Complaint Case No.22/09. Mr. Khosla contends that the

appointment of Mr. Vikram Bakshi as an Additional Director was a nullity

and in any event he also ceased to be a Director by operation law w.e.f. 27th

September,2007. As per the petitioners, since all three of them (Bakshi

Group) continued holding meetings as Directors of the Company illegally,

Mrs. Sonia Khosla filed a petition under Sections 397 and 398 of the

Companies Act before the Company Law Board on 13/08/07. In that petition

it was allegedly claimed, inter alia, that these three persons(arrayed as

contemners 1-3 herein) had already ceased to be the Directors of the

Company and so they had no right to conduct the affairs of the Company

and to swindle the assets of the Company In that petition the Company Law

Board passed some order on 24th December, 2007 with which Bakshi

Group felt aggrieved and so an application was filed for re-calling of

order dated 24th December,2007 and on that application the CLB passed

some directions vide order on 31st January,2008. With that order Mrs.

Sonia Khosla felt aggrieved. So she filed an appeal in this Court(being

Company Appeal No. 6 of 2008), against the order dated 31st January,2008

of the CLB. Shri R.P.Khosla, father-in-law of petitioner Mrs. Sonia Khosla,

who was also a party in that petition, also filed an independent appeal

against the same order and his appeal was registered as Company Appeal

No.7 of 2008. It is stated that in both the appeals it was categorically

pleaded and re iterated by the appellants that contemners 1-3 herein had all

ceased to be the Directors of the petitioner no.1 Company by operation of

law but illegally they were continuing to represent themselves as the

Directors. Co.A.No. 07 of 2008 filed by Mr. R.P.Khosla came to be taken

up for consideration on11th April,2008 before the Company Court when the

Court recorded that both the parties, out of whom Bakshi Group was being

represented by a counsel, had agreed that they shall maintain status quo

with regard to the shareholdings and fixed assets of the respondent company

as it stood at the time of filing of the petition before the Company Law

Board. In view of that agreement the appeal was disposed of as not pressed.

Co.A.No.06/08 filed by Mrs. Sonia Khosla came up for hearing before

the Court on 22/04/08 when while dismissing that appeal in limine it was

observed by this Court that it would be appropriate that the parties maintain

status quo with regard to the composition Board and shareholdings as it

existed on the day of filing of the petition by appellant no.1(Mrs. Sonia

Khosla) before the Company Law Board which was filed on 13.08.2007. It

is submitted that it was the case of Mrs. Sonia Khosla in the said Company

Petition before the Company Law Board as also before this Court that

on the date of filing of the petition before the Company Law Board S/Shri

Vikram Bakshi, Wadia Parkash and Vinod Surha were not the Directors but

despite that in both the appeals before this Court no affidavits in opposition

to that stand were filed by S/Shri Vikram Bakshi, Wadia Parkash and Vinod

Surha(described as the Bakshi Group by this Court also in the order dated

11th April,2008) which showed that they had no opposition to the averments

in the appeals that the Board of Directors of the Company on the date of

filing of the company petition did not comprise of any one of these three

persons. In the present application it is alleged that despite the direction

of this Court for maintenance of status quo in respect of the Board of

Directors of the company as it existed on the date of filing of the Company

Petition before the Company Law Board the respondents-contemnors no.1-3

have been claiming themselves to be the Directors despite the fact that they

were not the Directors on 13th August, 2007 and thereby had committed

contempt of this Court. My attention has been drawn to a copy of Form

no.32, annexed with this petition as Annexure 3/B, which according to the

petitioners was digitally signed and submitted on-line to the Registrar of

Companies on 29/12/08 by Shri Vinod Surha describing himself as a

Director of Montreaux Resorts (P)Ltd. That act of his, as per the petitioners,

amounts to violation of the orders of status quo, referred to already, passed

by this Court in the two Company Appeals. Mr. Manmohan Singh Jain,

respondent no.4, is stated to have abetted them for violating this Court/s

orders by counter-signing that Form 32 as the Company Secretary knowing

fully well about the this Court/s orders.

In my view, a prima facie case is made out for issuance of notice of this

petition against Shri Vinod Surha. As far as respondents Mr.Vikram Bakshi

and Mr.Wadia Prakash are concerned there is no document shown to this

Court showing that they have also been claiming themselves to be the

Directors of Montreaux Resorts (P) Ltd. after passing of the orders dated

11th April, 2008 and 22nd April, 2008 in the two Company Appeals.

Similarly, there is nothing on record to show, even prima facie, that

respondent no. 4 Mr.Manmohan Singh Jain had abetted Mr. Vinod Surha

for violating any order of this Court. Therefore, no case is made out for

even issuing show cause notices to these three persons. So, issue notice,

returnable for 27th January, 2010, to Mr. Vinod Surha only to show cause as

to why he be not proceeded against for committing contempt of this Court.”

35. Being aggrieved, the Petitioner has challenged the same, which is

pending before Division Bench of this Court for adjudication.

36. The total matters, pending around 40 in number, in this High Court

apart from the other cases pending before the Trial Court and Supreme

Court. The instant application is in pursuance of the order passed Sh. S.

Balasubramanian, Chairman Company Law Board, Principal Bench, New

Delhi on 31.01.2008 which is as under:-

“1. It is unfortunate that the petitioner who has come before this Board

seeking for equitable remedies should have acted in a manner over reaching

this Board during the pendency of the petition filed by her under Sections

397/398 of the Act.

2. The facts of the case are that the petitioner claiming / entitled to hold

35.5% / 49% shares in the company filed this petition alleging that by

further issue of shares, the respondents have reduced her shareholding to

18.25% / 24.5% and that the respondents are guilty of mismanaging the

affairs of the company. Various interim orders were passed inter alia

directing the Bench Officer to authenticate the statutory records of the

company and also providing opportunity to the petitioner to inspect the said

records. The respondents filed an application under Section 8 of the

Arbitration and Conciliation Act seeking for referring the parties to

arbitration on the ground that the entire dispute has arisen out of an

agreement between the parties. Arguments on this application were

concluded on 26.10.2007 and the order was reserved. Thereafter, with a

view to resolve the disputes amicably, I held discussion with the advocates

for the parties on 26.11.2007 but the efforts failed. On that day, the 11th

respondent, who is incidentally, neither a shareholder or a director, but the

husband of the petitioner, desired that the arbitration application should be

re-heard since he did not have the opportunity of presenting his case on

26.10.2007 when the arguments on the application were concluded.

Accordingly, I decided to hear the arbitration application again on 17.1.2008

and accordingly a notice of hearing was issued on 29.11.2007.

3. On 24.12.2007, the company filed an application CA 572/2007 and

mentioned the same ex-parte. Shri Chaudhary appearing for the applicant

submitted that the inspection carried out by the petitioner in pursuant to the

order of this Board revealed that respondents no. 3 & 4 who were appointed

as additional directors had ceased to be directors effective from 30.09.2006

as they were not confirmed in the AGM on that day and the 2nd respondent

who was appointed as additional director on 19.03.2007 can also not hold

office as he had been appointed by the board consisting of 3rd and 4th

respondents who had already ceased to be directors. With the view to

establish that they continued to be the directors of the company, these

respondents had convened a Board meeting on 28.12.2006 and therefore

they should be restrained to hold the said meeting. On hearing the learned

counsel, I passed the following order ex-parte:

“Application mentioned and it is prayed that the board meeting convened on

26.12.2007 be directed to be deferred for the reasons stated in the petition.

Since I find that no substantive business has been proposed to be transacted

in that meeting, I direct the company / respondents to defer the meeting till

the application is disposed of ……..Liberty to apply for modification of this

order with three days notice to the petitioner”.

On 31.01.2008, the respondents filed an application CA-1/2008 seeking for

modification of the order on the ground that respondent no. 3 and 4 has been

confirmed in the AGM held on 30.09.2006 and the same has been included

in the agenda for the AGM also but the fact of confirmation was

inadvertently not recorded in the minutes and that these respondents have

been acting as directors all along and they had validly appointed the 2nd

respondent as an additional director. It was further stated in the application

that the petitioner had co-opted another director on 11.12.2007 and had also

filed Form no. 32 with the ROC 08.12.2007 indicating the cessation of office

of the 2nd, 3rd and 4th respondents and had also passed a resolution to shift

the registered office of the company. When these facts were brought to my

notice on 03.01.2008, I passed the following order:

“Application mentioned. No board meeting by either side is to be held. The

application will be heard on 08.01.2008 at 1.00 PM”.

When the matter was heard on this day, it transpired that not only the

petitioner had co-opted a director on 11.12.2007, two more additional

directors had been appointed on 18.12.2007 and the board thus constituted

had also issued 6.58 lakh shares at Rs.100/- per share. In the application

filed on 24.12.2008, these facts had been suppressed.

4. When these facts were brought to my notice, I informed the counsel

for the petitioner that when the matter is pending before this Board, any

information/particulars collected during inspection ordered to be given by

this Board, should have been used only in the aid of these proceedings and

should not have been used for taking unilateral action by the petitioner

herself. I also informed the learned counsel that since the order dated

24.12.2007 was obtained by suppressing material facts and the unilateral

actions of the petitioner amounted to overreaching this Board, I had no

option but to dismiss the petition. The learned counsel for the petitioner

submitted that instead of dismissing the petition leave be granted to him to

withdraw the petition. I declined to his request for withdrawal stating that

the petitioner cannot withdraw the petition after having taken unilateral

advantage of taking over the control of the company during the proceeding

and if at all the petitioner desired that the petition should not be dismissed,

she must be prepared to restore status quo ante with regard to the Board and

the shareholding. Shri Chaddha, Advocate for the petitioner requested that

instead of dismissing the petitioner he be given two days time to convince

his client to restore the status quo ante and would file an affidavit to that

effect. In view of this submission, not-withstanding the fact I had indicated

that I would dismiss the petition, I reserved the order and I gave him liberty

to apply. No affidavit was filed thereafter. Instead, by a letter dated

15.01.2008, one Shri Vineet, Khosla who was appointed as an additional

director on 11.12.2007, sent a letter to this Board stating that they were

willing to restore status quo ante but could not file an application which was

ready, in view of the non availability of the counsel and hospitalization of

the petitioner and that the said application would be filed within the next two

days i.e. not later than 17.01.2008. However, no affidavit / application was

filed even thereafter. CA 70 of 2008 dated 15th January was filed on

30.01.2008 by the company affirmed by the same Shri Vineet Khosla and

was mentioned on 31.01.2008.

5. It is to be noted that it was the learned counsel for the petitioner who

requested this Board not to dismiss the petition but to give him some time to

convince his client to restore status quo ante and accordingly I reserved the

order and granted liberty. However, it is Shri Vineet Khosla who was

appointed as an additional director on 11.12.2007 who has filed this

application stating “Irrespective of the fact that the actions that have been

taken by the applicant company from 11.12.2007 are lawful as well as in the

bonafide interest of the company, it shall undo all the steps taken on the

count of prejudice claimed by the respondents (namely, composition of the

board of status quo ante as of 11.12.2007 and then proceed as per the wishes

and guidance, and directions of this Hon’ble Board”. In the prayers to the

application, the applicant has sought for upholding that the respondents 2,3

and 4 are no longer additional directors; for accepting the resignation of the

additional directors appointed on 11.12.2007 and 18.12.2007; for

authorizing the petitioner to appoint additional directors; to maintain the

percentage shareholding by offering shares to the 2nd respondent and his

group in the same manner as was done on 18.12.2007; till then for freezing

the voting rights on the shares issued on 18.12.2007 and to authorized the

board constitute by the petitioner to decided on the location of the registered

office. There is no mentioned about Form no. 32 filed by the company on

08.12.2007 regarding cessation of office by the 2nd, 3rd and 4th respondents

which fact the petitioner came to know through inspection granted by this

Board. The prayers made in the application would indicate what the

applicant seeks is for more or less regularizing the further issue of shares as

well as to recognized the cessation of office by the respondents 2 to 4. Thus

it is evident from the application that while in the first paragraph having

agreed to undo all steps taken, in the prayer, the applicant has sought for

more or less regularizing the acts done.

6. The contents of the application would indicate that the applicant has

not understood the grounds on which I had indicated on 08.01.2008 that the

petition was deserved to be dismissed. It has not dealt with the suppression

of the material facts in the application dated 24.12.2007 regarding

appointment of additional directors and further issue of shares for taking

unilateral action on discovery of material / information during the inspection

ordered by this Board which are to be used only in the aid of the proceedings

etc., It has only elaborated that everything was done in the interest of the

company.

7. I heard on the application. Without mentioning anything about

restoration of the status quo ante in regard to the shareholding and

directorship, Shri Chaudhary, Sr. Counsel for the applicant only desired that

the petitioner, being the only and single validly appointed director be

permitted to appoint additional directors to carry on the affairs of the

company. When I asked him as to why in the application dated 24.12.2007

on which ex-p[arte order was obtained, the fact of appointment of two

additional directors and issue of further shares on 18.12.2007 had not been

disclosed, he contended that it was not necessary to disclose the same as no

relief was claimed on that basis in the application. This contention has to be

straight away rejects as, if the same had been disclosed, either the order,

being ex-parte, would have been different or I would have declined to pass

any ex-parte order. Shri Vibhu Bakru, counsel for the respondents brought to

my notice that having undertaken before this Board on 08.01.2008 that an

affidavit affirming the restoration of the status quo ante would be filed

within 2 days, the petitioner had caused a suit filed in Delhi High Court by

an erstwhile shareholder and obtained a status quo order as on 11.01.2008

and thereafter, at the instance of the respondents, the said shareholder

withdrew the suit. Only after the suit was withdrawn at the instance of the

respondents, this application has been filed by the petitioner. The counsel for

the petitioner submitted that the petitioner had not caused the suit being filed

by the said shareholder and since according to the respondents that the suit

was withdrawn at their instances, even the suit should have been filed at

their instance only with the view to prejudice the mind of this Board that the

petitioner had filed the said suit. I do not propose to take cognizance of the

said suit except to note that in that suit, the status quo order as on 11.

01.2008 no longer survives in view the suit having been withdrawn.

8. In a proceedings under Sections 397/398, the Board exercises

equitable jurisdiction. Therefore, a person who approaches this Board should

not only come with clean hands, he should maintain the same during the

proceedings. His conduct is also an important factor in the proceeding.

Unfortunately, in the present case both CA 572/2007 and 70/2008 have been

filed in the name of the company. How and under what authority the same

have been filed is not disclosed. In other words strange things are happening

in this case. Whether the petitioner is at all involved in these applications is

not clear. However, getting an ex-parte order by suppression of material

facts, changing the composition of the Board and increasing the share capital

during pendency of the proceedings etc. would definitely indicate that the

petitioner / applicant have tried to over reach this Board and as I had

indicated ruing the hearing, on these grounds alone the petition could be

dismissed. However, having reconsidered the matter, I have decided not to

dismiss the petition except undoing what has been done.

9. Accordingly, I restore the status quo with regard to the composition of

the Board and the shareholding as existed on the day of filing of the petition

and direct the ROC not to take on record any document filed by the

company on or after 01.12.2007. The shares issued on 18.12.2007 stand

cancelled and the additional directors appointed on 11.12.2007 and

18.12.2007 will cease to be additional directors with immediate effect. The

company/board of directors/ respondents shall maintain status quo with

regard to the shareholding and fixed assets of the company as it stood at the

time of filing of the petition and the board should not take any substantive

decision on the finances of the company.

10. Replies to all pending applications are to be filed by 28.02.2008 and

rejoinders to be filed by 20.03.2008. All these applications together with the

application under Section 8 of the Arbitration Act will be heard on

25.03.2008 at 10.30 AM.”

37. The respondents have also challenged the same vide Contempt Case

C. 215/2008 against Petitioner no.2 & 3, which is also pending before this

Court for adjudication.

38. It is informed that in A.A. 93/2008 vide order dated 29.02.2008, the

consent order was passed thereby, the Tribunal was constituted and the

matter was referred for adjudication.

39. The company Montreaux Resorts Pvt. Ltd., and respondent no. 1 filed

the Review Petition against the said order. Same was dismissed as not

maintainable.

40. Thereafter, fresh application has been moved by the respondent under

Section 11 of the Arbitration and Conciliation Act. Mr.Deepak Khosla,

Respondent no. 2 has stated at Bar that he is going to withdraw the said

application and this Court consider it as withdrawn.

41. Further it is informed that the Petitioner has also moved application

U/s 11 of the Arbitration and Conciliation Act, which is pending for

adjudication.

42. On 01.12.2011, respondent No.2 Deepak Khosla has argued that

C.A.No.1170/2008 that the instant petition is a civil contempt and not a

criminal contempt petition. Where it is criminal contempt petition, the

concept of locus standi perhaps may not have been as rigidly applied. In

the instant petition being the civil contempt could only lie when preferred by

a party, who has a locus standi to prefer the same i.e. one who seeks

correction of the wrong done to him because he is otherwise entitled to the

benefit of a specific Court order in his favour and which order is alleged by

him to have violated by alleged contemnors. If they are not directors or

shareholders of MRL, they have not suffered any prejudice by the alleged

violation of the order dated 31.01.2008 passed by Company Law Board,

meaning thereby that they have no locus standi to prefer the present

contempt petition.

43. He has relied upon the decision of this Court in M/s.Nibro Ltd v.

National Insurance Company Ltd AIR 1991 (Delhi) 25 wherein this Court

has ruled that no director can represent any company before a Court in any

legal proceedings unless authorized to do so by virtue of resolution

specifically passed in his favour by the directors in a meeting of its body. It

is stated that suit can be presented by a duly authorized agent or by an

advocate duly authorized by him for the purpose. This authorization, in the

case of a company can be given only after a decision to institute suit is taken

by the Board of Directors of the company. The Board of Directors may, in

turn authorize a particular director, principal officer or the secretary to

institute a suit.

44. Vide instant application, the applicant has prayed as under:-

“1. Recall its order dated 17-3-2008 and/or hold it in abeyance till such time

the petitioners file evidence of their locus standi in preferring the petition.

In the alternative:-

Direct the Petitioners as under:

a) Direct the petitioner Nos.2 & 3 to place before this Hon’ble Court the

entire chain of documents and records they wish to reply upon to lay claim

to being lawful Directors of petition No.1 company, including but not

restricted to the documents listed at Annexure 4.

b) Direct the petitioner Nos.3 (and/or 2 and 3) to place before this Hon’ble

Court the entire chain of documents and records they wish to rely upon to

lay claim to being lawful representative(s) of Petitioner No.1 Company,

including but not restricted to the documents listed at Annexure 5.

c) Direct the petitioner No.2 to place before this Hon’ble Court the entire

chain of documents and records he wishes to rely upon to lay claim to being

lawful shareholder of Petitioner No.1 Company, including but not restricted

to the documents listed at Annexure 6.

2. Pass ex parte orders on prayers (1) above.”

45. Mr.Deepak Khosla, respondent /contemnor No.2 has referred to

Section 257 of the Company Act and submitted that the regular directors can

be appointed by election of shareholders for a particular period. Under

Section 260 of the Company Act, the tenure of the director is only upto next

AGM. Therefore, he submits that until and unless, on each and every thing is

cleared, and the petitioners filed the documents and lead evidence, these

proceedings cannot be go on and prayed that the proceedings be adjourned

sine die in these cases.

46. I note, in these matters, there are claims and counter-claims,

allegations and counter-allegations. It is impossible to adjudicate these

matters in these proceedings, since complex question of facts requiring full

fledged trial has to be conducted, which is not possible in contempt

jurisdiction.

47. It is pertinent to mention here that more than 20 Hon’ble Judges of

this Court have been rescued from these proceedings.

48. In my opinion, at best, keeping the allegations and counter-allegations

in view, it can be settled either in the Civil proceedings or by the Arbitrator

as informed by the parties that application U/s 11 of the Arbitration and

Conciliation Act is pending for adjudication.

49. Therefore, in my opinion, these mattes be adjourned sine die till the

allegation and counter-allegations are properly adjudicated at a forum where

evidence would be led.

50. Ordered accordingly.

Sd/-

SURESH KAIT, J